22. The family violence exception was introduced to address ‘community concerns that some migrants might remain in an abusive relationship because they believe they may be forced to leave Australia if they end the relationship’.[13]

23. In the partner visa context, the Regulations prescribe family violence as one of three exceptions to the requirement of a ‘genuine and continuing’ relationship.[14] The exception may be invoked by persons who have applied for permanent residence, but whose relationship has ended, and they, or a member of their family unit, has suffered ‘relevant family violence’ committed by the Australian sponsor.[15] In such cases, the visa applicant can still be considered for permanent residence.

24. The family violence exception can also be invoked in certain skilled stream (business) visa classes.[16] In those cases, the secondary visa applicant (partner of the primary visa applicant) can rely on the family violence exception if the relationship has ceased, and the secondary visa applicant, or a member of his or her family unit, has suffered family violence committed by the primary visa applicant.[17]

25. The Regulations set out, for each of the applicable visa subclasses, who can be an ‘alleged victim’ and ‘alleged perpetrator’ of family violence, and who can invoke the exception.[18]

26. DIAC statistics show that only a small percentage of partner visa cases involve family violence claims (see table below).[19] However, as family violence tends to be under-reported generally, and particularly in migrant communities, these numbers may not accurately reflect the extent of the problem.[20] Further, the ALRC understands that, in cases where the family violence exception was not claimed before a DIAC delegate, but made for the first time before the MRT, this is not recorded in the MRT’s official statistics.[21]

Graph: Family Violence Claims in Partner Visa Cases

Source: Data collected from Annual Reports of the Department of Immigration and Citizenship.

Definition of ‘relevant family violence’

27. The Regulations define the term ‘relevant family violence’ to mean a reference to conduct, whether actual or threatened, towards:

(a) the alleged victim; or

(b) a member of the family unit of the alleged victim; or

(c) a member of the family unit of the alleged perpetrator; or

(d) the property of the alleged victim; or

(e) the property of a member of the family unit of the alleged victim; or

(f) the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.[22]

28. This definition takes a similar approach to the definition of family violence in the Family Law Act 1975 (Cth) in giving focus to the effect of the conduct on the victim, rather than categorising types of conduct.[23]

Judicial consideration of the term ‘violence’

29. The term ‘violence’ is not defined by the Regulations, but it has been the subject of some judicial consideration. Early authorities on this issue took a broad view that violence was ‘not meant to exclude instances where the damage suffered by the applicant was not wholly physical’.[24] However, in Cakmak v Minister for Immigration and Citizenship, the Full Federal Court commented that the term ‘violence’ was restricted to physical violence, and that things like belittling, lowering self esteem, ‘emotional violence’ or ‘psychological violence’ broadened the scope of the Regulations beyond their words.[25]

30. In Sok v Minister for Immigration and Citizenship the Full Federal Court, disapproved of these comments, holding that violence is not restricted to actual or threatened physical violence.[26] The court considered that ‘domestic violence’ is a term of art in contemporary Australia and, in the modern day context, is generally understood to encompass emotional abuse or economic deprivation.[27] A critical part of the courts’ reasoning was that reg 1.23(2)(b) of the Regulations refers to violence that causes the victim to fear for his or her ‘personal well-being or safety’, and that personal well-being is generally considered to encompass psychological health.[28]

ALRC consideration of the term ‘relevant family violence’

31. In Family Violence: Improving Legal Frameworks, ALRC CP 1, the ALRC and the New South Wales Law Reform Commission (NSWLRC) (the Commissions) foreshadowed these issues and asked how the definition of ‘relevant family violence’ in the Regulations was working in practice.[29] The Commissions flagged that the responses received would be used in this Inquiry.

32. In response, some stakeholders argued that the definition was not working well in practice.[30] Justice for Children attributed this to ‘the attitudes of [judicial officers] that victims are only seeking permanent residence’.[31] The Magistrates’ Court and Children’s Court of Victoria submitted that it had ‘little insight’ into how the definition was working in practice, but acknowledged the practical reality that:

Allegations are regularly made in family violence protection applications of threats to revoke visas or migration support, to ‘send a person home’ and respondents regularly suggest applicants have ‘made up’ allegations of family violence to circumvent the Regulations.[32]

33. Other stakeholders suggested that the current definition of ‘relevant family violence’:

  • is too narrow and should be broadened to reflect current understandings of family violence, including having the reasonableness test removed;[33]

  • should reflect the broader definition used in the Victorian family violence legislation, or align more generally with the definition in the Family Law Act 1975 (Cth) and all state and territory definitions of family violence;[34]

  • is problematic in its inclusion of the term ‘relevant’, as this is out of step with other state, territory and federal definitions of family violence, and appears to suggest that relevance of violence is determined according to culture.[35]

34. In the report, Family Violence: A National Legal Response, Report 114 (2010) (ALRC Report 114), the Commissions recommended the adoption of a common interpretative framework in relation to family violence across state and territory family violence legislation, the Family Law Act and, in limited instances, criminal law. The Commissions recommended that each legislative scheme should provide that family violence is:

violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes a family member to be fearful. Such behaviour may include but is not limited to:

(a) physical violence;

(b) sexual assault and other sexually abusive behaviour;

(c) economic abuse:

(d) emotional or psychological abuse;

(e) stalking;

(f) kidnapping or deprivation of liberty;

(g) damage to property, irrespective of whether the victim owns the property;

(h) causing injury or death to an animal irrespective of whether the victim owns the animal; and

(i) behaviour by the person using the violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.[36]

35. The Commissions considered that systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting seamlessness and effectiveness in proceedings involving family violence.[37] A particular benefit of a common understanding of family violence relates to the gathering of evidence of family violence for use in more than one set of proceedings. This may be helpful to victims of family violence who may engage with other systems—in addition to migration—that deal with or involve a consideration of family violence.

36. The ALRC is interested in stakeholder experiences with respect to the definition of ‘relevant family violence’ in the migration context. Further, the ALRC welcomes comments on whether the Regulations should be amended to insert a definition consistent with that recommended in ALRC Report 114.

Question 1 What issues arise in the use of the ‘relevant family violence’ definition in the Migration Regulations 1994 (Cth)? How does the definition operate in practice?

Question 2 Should the Migration Regulations 1994 (Cth) be amended to insert a definition of family violence consistent with that recommended by the ALRC and New South Wales Law Reform Commission in Family Violence—A National Legal Response (ALRC Report 114)?

[13] Department of Immigration and Citizenship, Fact Sheet 38: Family Violence Provisions (2010) <http://www.immi.gov.au/media/fact-sheets/38domestic.htm> at 13 December 2010.

[14] See, eg, Migration Regulations 1994 (Cth) sch 2 cls 100.221(3)–(4). Other exceptions are where there the relationship has ceased and the sponsor has died; or where the relationship has ceased and there are children involved.

[15] Department of Immigration and Citizenship, Fact Sheet 38: Family Violence Provisions (2010) <http://www.immi.gov.au/media/fact-sheets/38domestic.htm> at 13 December 2010.

[16] These are: Established Business in Australia (Subclass 845); State/Territory Sponsored Regional Established Business in Australia (Subclass 846); Labour Agreement (Subclass 855); Employer Nomination Scheme (Subclass 856); Regional Sponsored Migration Scheme (Subclass 857); and Distinguished Talent (Subclass 858).

[17] See, eg, Migration Regulations 1994 (Cth) sch 2 cl 846.321(3).

[18] Ibid div 1.5 and sch 2.

[19] For example, DIAC’s Annual Report for 2009­–10 shows that 44,755 partner visa applications were granted. Over the same period, only 705 applications with claims against the family violence provisions were made.

[20] See, eg, P Easteal, ‘Double Jeopardy: Violence Against Immigrant Women in the Home’ (1996) 45 Family Matters 26.

[21] Sobet Haddad, Migration and Refugee Review Tribunals, Consultation, Sydney, 12 November 2010.

[22]Migration Regulations 1994 (Cth) reg 1.21(1).

[23]Migration Amendment Regulations (No 13) 2007 (Cth) reg 3 amended the definition and replaced the term ‘domestic violence’ with ‘family violence’. The definition of ‘relevant family violence’ applies to all visa applications made on or after 15 October 2007.

[24] See Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291. This approach was also adopted in Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279; Meroka v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 251.

[25]Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183, [62].

[26]Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170.

[27] Ibid, [24].

[28] Ibid.

[29] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 4–6.

[30] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report 114; NSWLRC Report 128 (2010), 287.

[31] Ibid.

[32] Ibid.

[33] Ibid, 288.

[34] Ibid.

[35] Ibid.

[36] Ibid, Recs 5–1, 6–1, 6–4.

[37] Ibid, 55.